principle of sovereign immunity

It is undisputed that international law is based on reciprocity, and nowhere is this
more apparently than in the area of diplomatic relations and immunities. Thus the
principle of equality of sovereign states is enshrined in Art 1(2) of the Charter of the
United Nations, and the notion of state immunities including those afforded to its
sovereigns operates on this principle, specifically “par in parem non hebet imperium”
where since both states are equal, one cannot be subject to the jurisdiction and the
courts of another. Furthermore, it is now widely accepted the heads of states and
foreign ministers in representing states are also afforded this immunity to allow them
to carry out their functions properly. However, modern times which has seen a rise in
a respect of human rights has found a new clash with the principle of sovereign
immunity. As such, international jurisprudence is now developing and arguably
struggling to try and achieve a balance between these two objectives, a matter which
will be analysed in this essay.

Ratione personae and Ratione Materiae

The two different types of immunities delegated to state representatives will be noted
at the outset, namely ratione personae and ratione materiae. The former allows
immunities to a particular person from the jurisdiction of a states’ courts by virtue of
the office he holds, for any of his actions whether conducted in an official or private
capacity. Since this type of immunity is only required for a practical basis to allow
functioning, once the individual leaves office this type of immunity lapses.

The second type of immunity is that of ratione materiae, where it is the nature of the
act which immunity is afforded to. Here, if an act was carried out in an official
capacity it can not be the subject of a court action, based on the principle of the
sovereign equality of state as noted above and non-intervention of one state into
another state’s affairs. Since the nature of the act is the determining factor here, the
immunity remains even if the official in question has left his post.

The distinction is pointed out at the outset since the Courts have dealt with the two
different types of immunities differently. Ratione materia will be dealt with in the first
instance.

The Pinochet Case – Ratione Materia

The issue of the potential conflict of immunities and human rights violations came to
the forefront when the former President of Chile, Augusto Pinochet Ugarte, visited
the United Kingdom in 1998 for medical reasons. While there, the Spanish
government requested the UK government to extradite Pinochet to face charges of
inter alia torture and conspiracy to torture in the Spanish Courts under legislation
enacting the Convention Against Torture [CAT] (1984). The issue went to the UK
House of Lords where it was held that Pinochet could not claim immunity for his acts
as a former head of state against allegations of torture.

The immunity claimed in this case was that of ratione materia, since Pinochet was
clearly not a current head of state and thus ratione personae immunity was not
available to him. Although the House of Lords approved the judgement by a large
majority – there was only one dissenting Lord – a variety of reasoning was
employed.

Lord Browne-Wilkinson, Lord Hope and Lord Saville found that those who had
signed the CAT had impliedly waivered state immunity for their sovereigns. It was
noted that the definition of Torture provided for in Art 1 of CAT required for the acts
complained of to have either been carried out by or with the involvement of a state
official. As such, any allegation of torture would necessarily always be able to be met
with a defence of state immunity which would render the CAT meaningless. Such an
analysis is quite insightful, but may creates problems of distinction for claimants
relying on the customary prohibition of torture rather than CAT.

Criminal and Civil Liability

Other judges adopted a more broad consideration of the issue, where it was held that
due to the heinousness of the act of torture and the jus cogens nature of the
prohibition of torture, immunity ratione materia could never be a valid defence. Their
Lordships pointed out that the purpose of the immunity is to ensure that the national
courts of one state do not adjudicate on the responsibly of another, but in this case
they were dealing with an issue of individual criminal liability and to hold immunity
existed in this case would go beyond the purposes intended for such immunities,
namely stability of international relations.

Thus, a distinction can be seen between criminal liability cases and civil liability
which would necessarily entail criminal responsibility. This distinction can be
appreciated in a later case.

In Al-Adsani v UK, the applicant was a dual UK and Kuwaiti national who alleged
that on a visit to Kuwait, he was subjected to torture in a Kuwaiti state prison as
retaliation for his circulating sexual tapes showing the Emir of Kuwait’s brother, the
Sheikh. He brought a claim in the UK for physical injuries and mental suffering
caused from the treatment he suffered against inter alia the state of Kuwait. The UK
Courts however held that Kuwait’s claim to the state immunity Act 1978 succeeded.
The Court of Appeal referred the case to the European Court of Human Rights where
the applicant alleged that in invoking state immunity and not allowing his case to be
heard in the UK Courts, the UK violated Art 6, the right of a fair trial. This was a
more contentious matter and the Court very narrowly held, with a nine to eight vote
majority that the right of access was not violated by upholding the defence of state
immunity.

Here the European Court pointed out that the nature of jurisdictional immunities acted
as a procedural bar, and if waived by the host state a substantive case could be heard.
The Court pointed out that sovereign immunity was an essential concept of
international law, with a legitimate aim of promoting comity and good international
relations. As such, a distinction had to be made with civil suits and criminal cases. A
criminal case, as in the case of Pinochet, went to the question of individual criminal
liability for acts. A case for civil damages however, would necessarily have to find
state responsibility and the Court concluded in its analysis of the case law that an
international norm excluding liability for civil damages had not emerged.

Such an approach of distinguishing criminal and civil liability was repeated by the
UK Courts in Jones v Saudi Arabia, where it was held immunity could not be
waived for a claim for civil damages as a result of torture.

Some commentators have suggested that the civil-criminal liability is distinguished
due to the nature of the crimes in the case. However, the analysis of the Court seems
to suggest a different ground of distinction in this case – Criminal responsibility is
based on individuals, and thus does not involve any question of state liability or state
sovereignty. The case of Re Pinochet did not entail any judgement at all in the actions
of Chile as a state itself, and render it liable for any reparations for example. If
however there was to be no state immunity allowed in Al-Adsani, it would be found
that Kuwait entailed responsibility for the actions and liable for damages, thus
entering into the realms of state sovereignty and non-intervention in other states’
affairs. The effect on international relations was therefore clearly a determining factor
in this case. Where there was less of an effect on international status in criminal
cases, more weight was given to human rights norms.

Normative Hierarchy Theory

Of course, the dissenting judges in Al-Adsani did not consider that the distinction
between civil and criminal liability was important enough when pitted against a
prohibition of torture. Many judges pointed out that since the Court accepted that
torture was a jus cogens norm, they should also accept that it would always prevail
over all other norms including those of state immunity. Thus the status of torture
would invalidate immunity laws or its effect at least for that particular case. This has
been described as a normative hierarchy theory – since torture is a jus cogens norm, it
goes above the norm of state immunity.

Some of the judges in Re Pinochet also adopted this theory. The Pinochet case is
considered by many around the world as revolutionary as it is principally the first case
to consider that immunity did not exist for allegations of egregious human rights
violations.

This approach is attractive from the human rights perspective and does accord well
with the prohibition of torture in international law in stating that there can be no
justification whatsoever for the use of torture. However, there are relatively few jus
cogens norms in international law, and even the status of torture as jus cogens is
disputed. Adopting such a theory in absence of other justifications would mean that
other human rights violations cannot be pitted against the laws of state immunity.

No immunity for ratione personae

A further distinction that has been made by Courts is that for existing officials of
state, who still hold immunity ratione personae.

This can be seen in the Arrest Warrants case held before the ICJ. Under a Belgian law
of 1993 Belgian Courts had universal jurisdiction in respect of grave breaches of
international humanitarian law and crimes against humanity, irrespective or not of
whether the offender has acted in an official capacity. On this basis a Belgian
investigating judge issued an arrest warrant in absentia for the then Minister for
Foreign Affairs of the Congo. Congo responded by taking the matter to the ICJ,
challenging that that the alleged arrest warrant violated the principle of sovereign
equality among member states of the UN as enshrined in Art 2(1) of the UN Charter,
as well as diplomatic immunity for ministers of foreign affairs for a sovereign state as
laid out in Art 41(2) for the 1862 Vienna Convention on diplomatic relations.

The majority of the ICJ, thirteen votes to three, held that the arrest warrant was indeed
in violation of customary international law laying down rules of absolute inviolably
and immunity from criminal proceedings of incumbent foreign ministers, therefore
breaching principles of sovereign equality among states. However, no form of
satisfaction was awarded other than the judgement which the Court held would make
good the moral injury complained of by the Congo.

This case thus shows that the doctrine adopted in Pinochet is highly unlikely to
extend to existing officials, illustrating that the main rationale behind immunities is to
allow international relations to develop. Holding a Foreign Minister liable to
prosecution in another country while he is still Foreign Minister would greatly impair
this ability – as the Court noted in its majority judgement, Foreign Ministers are
allowed this immunity to allow them to travel and communicate with other states and
allowed effective representation of their State. The Court, like other decisions
abovementioned, did emphatically state that immunity did not equate to impunity and
the procedural bar of immunity once lifted could hold an individual responsible, such
as before the courts of his own country, where the state has waived immunity, after
the person in question has ceased to hold public office or perhaps in the future under
the International Criminal Court. The Court can be said to show some leaning
towards appreciation of human rights when it did not approve of damages further than
the damage being claimed, recognising perhaps that to award damages to someone
accused of such egregious human rights violations would exceed the doctrine of
immunities and would not serve a beneficial purpose.

Judges Higgins, Koojimans and Burgenthal issued a separate opinion in the Arrest
Warrants case, where they dissented with the Court requiring a cancellation of the
Arrest Warrant issued by Belgium. They noted that the Court noted the provision of
immunities to the Foreign Minister in this case was to allow his continue travelling
and maintain communication and relations with other states in order to represent his
state effectively. However, since he was no longer Foreign Minister at the time of the
hearing at the international court there was no longer need for this expansive
immunity and as such a cancellation of the arrest warrant would not be required. Such
opinions are clearly based on the rationale behind immunity being that of
functionality of international relations – once this is no longer at risk a whole
immunity is no longer required.

Judge Van Den Wyngaert went even further and stated that the Court had taken
immunities too far in creating a potential violation of international human rights.23
The dissenting judges in this case therefore clearly carried out balancing exercises
between the two objectives of functionality of international relations and human rights
with some reaching different conclusions to others.

It is particularly notable that following this case, under diplomatic pressure from other
states Belgium amended its laws on 23 April 2003 and once again on 5th August of
that year, holding persons granted immunity under international law will be excluded
from the reach of that legislation. Many commentators have regretted that
diplomatic pressure and international politics has ‘destroyed the revolutionary
character of Belgium’s legislation’ in this case.

In conclusion therefore an analysis of international case-law shows that allowing
immunity to provide for and facilitate international relations has been seen as a
particularly important objective – Thus immunities have not been waived with regard
to those still holding office. As Judge Van den Wyngaert pointed out in dissenting in
the Arrest Warrants case, such an approach is likely to have stemmed from a
consideration of avoiding chaos and abuse in international processes. Even where
immunities have been waived with regard to those who have formerly held office, as
in the Pinochet case for example, this has only been done with regard to individual
criminal liability where Courts point out that they are not invoking the responsibility
of states. Furthermore, the issue is only ever raised with regard to particularly
egregious human rights norms such as those of torture and it seems hardly likely
immunity would be waived for a norm perceived to be of lesser value such as an
economic and social right of development.

Thus, while international law is clearly developing in the area of human rights, the
fact that immunities is based on such an important precept of international law renders
Courts very reluctant to waive immunity, and they have only done so on very limited
occasions. Many commentators have criticised this – Caplan for example points out
that a theory of collective state benefit should be employed and granting immunities
to human rights violates does not benefit the collective international community.28
McGregor points out that the new UN Convention on Jurisdictional Immunities of
States and their Properties does not include any reference to human rights and
criticises the lack of a human rights protocol, as does Denza. It is the very nature
of international law however that law can only be made when states reach a
consensus, and until they reach a consensus to not raise claims of infringement of
sovereignty by waiving immunity, it is anticipated that very slow progress will be
made in this area.